Condemned if They Do, Condemned if They Don't: Eminent Domain, Public Use Abandonment, and the Need for Condemnee Protections

• Publication year: 2006

SEATTLE UNIVERSITY LAW REVIEWVolume 30, No. 2WINTER 2007

Condemned if They Do, Condemned if They Don't: Eminent Domain, Public Use Abandonment, and the Need for Condemnee Protections

Cristin Kenfi(fn*)

I. Introduction

Imagine you are enjoying the tranquility of your home and its surroundings when you receive a notice in the mail that the local power company wants to condemn your home in order to build a new power plant.(fn1) Determined to put up a fight in hopes of the power company backing down, you decide to contest the taking in court. During trial, the power company adduces a few drawings of the proposed power plant, along with financial reports showing that the power company will likely be able to complete the project in the coming years. Surely, you think, the power company must produce something other than a few drawings and reports before it can condemn your property. However, the court rules in favor of the power company, and you are forced to leave your home.

Six months later, you read about a major real estate development plan in the newspaper involving new housing subdivisions and strip malls. As you read the article more carefully, you realize the proposed site of this new development is exactly where your old house used to stand, before the power company demolished it. Furious, you call your lawyer and demand he file a complaint to get your property back, as the power company appeared to have no intention of building a power plant in the first place. Giving up your home for a project that benefits everyone is tolerable, but losing your home so others can make a profit is unacceptable, you tell him. Sadly, your attorney informs you that you have no cause of action against the power company. Because the court determined that the taking was for a "public use," the power company can do whatever it wants with the property. The company has no obligation to put the property to a use that will benefit the public as a whole, despite having been required by the court to show a public use warranting the exercise of eminent domain.

Although such a scenario may be hard to imagine, it is possible based on current eminent domain jurisprudence. By allowing a condemnor to abandon the public use after condemnation, courts have expanded condemnors' power while simultaneously limiting condemnees' ability to protect themselves from fraudulent and speculative takings. Once a condemnor can prove a prima facie public use for the property, the condemnee has virtually no way to prevent the condemnation, nor can the condemnee regain title to the property if the public use is abandoned. This result is inequitable because it allows condemnors to unfairly manipulate the doctrine of eminent domain for their own personal gain, rather than for the benefit of the public.

Courts that allow condemnors to abandon the public use of the property after condemnation through eminent domain, without providing any corresponding substantive or procedural rights for condemnees, ignore the public use requirements of the U.S. and Washington constitutions. To level the field between condemnor and condemnee rights, four changes should occur. First, courts should stop presuming condemnors act in good faith when bringing condemnation proceedings. Second, courts should decide whether the property at issue is necessary for the project, as well as whether the type of interest sought is necessary, instead of deferring to legislative determinations regarding these issues. Third, condemnors should be required to put the property to a public use within a reasonable period of time and should continue that use for a specified period. Finally, condemnees should have the right to repurchase the property at the original condemnation price if the public use does not occur within a reasonable period of time or if the condemnor fails to satisfy the statutory period of public use.

This Comment is divided into six parts. Part II examines the historical and constitutional understandings and application of eminent domain and the public use requirement. Part III analyzes cases decided under the U.S. and Washington constitutions in which courts upheld condemnors' rights to abandon or fail to fulfill the public use of the condemned property. Part IV discusses cases outside of Washington in which courts have upheld the validity of takings even though the condemnor subsequently abandoned or failed to fulfill the public use. These cases illustrate the need for more substantive and procedural protections for condemnees. Part V argues that allowing condemnors to abandon the public use is inconsistent with the public use requirement of the federal and Washington constitutions. This Part also examines possible procedural and substantive protections to protect condmnees from arbitrary or speculative takings and recommends that the legislature enact some, but not all, of these protections.

II. Historical Understandings of eminent Domain and Public Use Under the U.S. and Washington Constitutions

Eminent domain is the power of states, cities, and other authorized entities, such as power companies, to condemn private property for a public use.(fn2) The Fifth Amendment guarantees, among other things, that private property can only be taken for a public use and only when just compensation is paid.(fn3) This portion of the Amendment, known as the Takings Clause, ensures that select individuals are not forced to bear the burden of public projects that should be borne by the entire public.(fn4) The Washington constitution has a similar provision,(fn5) although its precise boundaries differ in important ways from the Fifth Amendment.(fn6) This Part examines the historical development of the public use requirement under both the Fifth Amendment of the U.S. Constitution(fn7) and article I, § 16 of the Washington constitution.(fn8)

A. Historical Influences on and Understandings of Public Use Under the Fifth Amendment of the U.S. Constitution

Governments have exercised the power of eminent domain for centuries, long before the U.S. Constitution included the Takings Clause;(fn9) however, scholars disagree as to where the power of eminent domain originated.(fn10) Most scholars believe that eminent domain is an inherent power of sovereignty.(fn11) As such, the Takings Clause limits the government's eminent domain power, rather than granting the government eminent domain power. In other words, because the government as a sovereign entity necessarily possesses the power of eminent domain,(fn12) the Fifth Amendment merely limits that power to takings for a public use and requires that when the power is exercised, the government pay the owner just compensation.(fn13)

Determining exactly what the framers intended by the Takings Clause is difficult. Although the text of the Takings Clause is seemingly clear, there are little or no records of debate about the clause.(fn14) Moreover, there is disagreement among scholars as to which political ideologies likely influenced the framers' understandings of eminent domain.

Some scholars believe that republicanism was the dominant influence on the framers' understanding of property.(fn15) Classic republicanism advocated the importance of private property, particularly land, as the prerequisite to participation in civic affairs.(fn16) Classic republicans thought that only private property owners were independent enough to make rational judgments and not be swayed by others in their decision-making.(fn17) Classic republicans also believed that the legislature promoted the "public good," which was thought to include everyone's interests.(fn18) Thus, under classic republicanism, it was not problematic in terms of individual rights when the government exercised eminent domain because the government, by definition, worked to promote the public good.(fn19) Even if private property was taken by the government, the property would have to be put to a use that promoted the public good.(fn20) Consequently, the property owner still benefited, even if his or her property was taken.

Conversely, some scholars believe that John Locke was the primary influence on the framers' understanding of property rights, and thus eminent domain.(fn21) Locke argued that government was created, in part, to protect property, and this protection was the reason individuals chose to leave the state of nature and enter into society.(fn22) Locke argued that government could not take property without the owner's consent because if government could do so the property owner would lose the only reason for entering into society in the first place, namely the protection of property.(fn23) James Madison(fn24) was particularly influenced by Locke when he wrote, "Government is instituted to protect property of every sort... . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own."(fn25)

Regardless of which theory actually influenced the framers' understanding of eminent domain and the role of government in protecting property, the Takings Clause's public use requirement remains intact. Under republicanism, government can only work to promote the public good.(fn26) Thus, when it exercises eminent domain, the government necessarily puts the property to a use that will be in the public's interest.(fn27) If a project is in the public's interest, it would likely satisfy the public...