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December 20, 2006 |
Contact: John Barnes |
New Report Warns Eminent Domain Threat Very Real in Washington
Seattle - When the U.S. Supreme Court issued its infamous decision in Kelo v. New London, which allowed local governments to condemn homes and businesses for private development, representatives of Washington cities and developers assured Washingtonians that, because of the Washington Constitution's strong protections, private takings for economic development were impossible here. And when the Legislature considered beefing up protections for private property, the lobbyists for municipalities were in Olympia repeating their mantra: "It can't happen here."
According to a new report issued today, however, they were wrong. Eminent domain abuse can occur in Washington. And it is happening right now.
"A False Sense of Security: The Potential for Eminent Domain Abuse in Washington State," released by the Washington Policy Center, documents shortcomings in Washington law that allow the state and local governments to abuse their eminent domain power. The report also points out how eminent domain abuse is exacerbated by the failure of the Washington courts to hold local governments to the strict standards of the Washington Constitution. Copies of the study and the two-page Policy Note are available online at www.washingtonpolicy.org, as well as the website of the Institute for Justice, www.ij.org.
"Washingtonians have a false sense of security, not real protections from eminent domain abuse," said William R. Maurer, the author of the Policy Brief. Maurer, the executive director of the Institute for Justice Washington Chapter and an Adjunct Scholar at the Washington Policy Center, identified the following three areas in which Washington law empowers local governments to violate the property rights of Washington residents:
1. Bogus Blight: Most people think "blight" means things like abandoned, dangerous or dilapidated buildings, but under Washington's Community Renewal Law (CRL), nearly every neighborhood in Washington could be declared blighted, then bulldozed and handed over for private development. Maurer warned, "The CRL allows governments to declare entire neighborhoods blighted for vague excuses like 'excessive land coverage,' 'obsolete platting' or even 'diversity of ownership,' meaning everyone owns their own home. The CRL even gives local governments a catchall provision that allows them to condemn any area that 'substantially impairs or arrests the sound growth of the municipality,' which can mean whatever the government wants it to mean. And even if only one single property in a neighborhood meets one of these vague standards for bogus blight, the entire neighborhood can be condemned."
Maurer warns that this threat to Washingtonians is real. Since last year's Legislative session, three Washington neighborhoods have faced the threat of being declared blighted under the CRL:
- Auburn: In September of 2006, the City Council declared a large chunk of the city's beautiful downtown area to be "blighted." Block after block was judged susceptible for condemnation because of "inappropriate use of land," "excessive land coverage" and "obsolete platting or ownership patterns." The head of City planning explained that blight "means anything that impairs or arrests sound growth."
- Seattle: Seattle is considering blighting large parts of the Rainier Valley , the heart of Seattle's vibrant minority community, to build centrally planned "urban villages" and a town square around two Sound Transit stations. City officials are using the low-income status of many residents to justify the potential taking of private homes and businesses. The City's failure to control crime in the area is another reason officials give for seeking to bulldoze this neighborhood.
- Renton: Mayor Kathy Koelker recently set her sights on the homes of low-income residents living in the Highlands neighborhood. The City Attorney helped build the case by declaring the area blighted because homes there are generally worth less than houses in other parts of Renton. After public protests, the Mayor shelved the plan.
€śUnless Washington 's Community Renewal Law is substantially amended, local governments in Washington can do exactly what the City of New London did in Kel ,€ť Maurer warned. "Asking tax-hungry local governments and land-hungry developers to restrain themselves is like asking the fox to restrain himself in the hen house. Policy makers concerned with the sanctity of homes and small businesses should be concerned that such a broad opportunity for abuse exists in Washington law. And the courts must do their part by vindicating these laws rather than allowing local governments to run roughshod over our rights."
2. "Necessity" Now Means What You Want, Not What You Need: Under Washington law, the government is supposed to prove that a particular property it seeks to condemn is necessary to achieve a legitimate public use. Unfortunately, however, because courts often rubberstamp government "necessity" claims, local governments now use these claims to take land they don't need and sell it later, like a real estate speculator. In a case involving the Seattle Monorai, the Washington Supreme Court permitted the Monorail to permanently condemn property it only needed temporarily. Once the public use was complete, the Monorail could sell the property later to whomever it pleased for any purpose.
The necessity standard also permits the government to specifically target properties that they don't like, which happened in Burien where the City condemned a property that it didn't consider upscale enough. The City Manager told his staff to "make damn sure" a road went through the building and, when the City's initial plans didn€™t destroy the building, the City reconfigured them to ensure it was destroyed. The courts refused to stop this blatant abuse of governmental power.
"Because the courts let local governments take more property than is necessary for a legitimate public use, the courts created a huge loophole in the constitution," Maurer noted. "Clever planners use the courts' failure to control outrageous schemes, like those by the Monorail and Burien, to do whatever they want, regardless of what the constitution says. The courts must end their judicial passivism and fulfill their role as a check on the other branches of government. Our state legislature needs to provide protections against local governments that abuse the constitutional rights of citizens in our state."
3. Eminent Domain Decisions Occur in Secret: If the courts' deference to local governments' necessity decisions weren't bad enough, the Washington Supreme Court permits the government to make these decisions essentially in secret, with the only notice provided on an obscure governmental website. "Given that a resident of Seattle faces possible condemnation from eight different entities, even the most devoted governmental website enthusiast would find it practically impossible to know when these hearings occur. Eminent domain decisions in this state have therefore become secret decisions, secretly arrived at," said Maurer.
The Policy Brief notes, however, that all news is not bad. In the 2006 election, when voters nationwide had an opportunity to make their views known, they overwhelmingly approved all the purely eminent domain related reform ballot measures before them. Similarly, in Pierce County, voters overwhelmingly approved (by a margin of 70 percent to 30 percent) an amendment to the County's charter that restricted the County from condemning property for economic development and that also reined in judicial deference to any County "necessity" determination.
"The people continue to let their legislators know that this is a very important issue for them that literally hits home€”everyone's home," Maurer continued. "Pierce County's experience shows that voters in this state don't believe the eminent domain apologists who oppose reform. Real eminent domain reform unites Democrats and Republicans, urban and rural, liberals and conservatives. The public recognizes that the only people who are opposed to protecting our homes and businesses are the very people who benefit from abusing eminent domain: the government and its politically connected allies."
Dann Mead Smith, the president of the Washington Policy Center, added, " Washington once had strong protections for its citizens, but the actions of some local governments, with the acquiescence of the courts, have robbed the people of these protections. The actions by local governments discussed in the brief show that eminent domain abuse can happen here and it is happening right now. We hope this Policy Brief points the way for Washington to reclaim its heritage as part of the vanguard of reform."