When is condemnation appropriate?

Renton High, 1938. Ten years later Renton Memorial Stadium was built on 17 acres nearby, to provide the high school with a football and track stadium. The School Board voted this week to use eminent domain to enlarge this school site into the neighborhood around it.

I’ve been writing about eminent domain on two topics, the Renton School District  and the proposed Asphalt Plant.  In this post I share some of my personal background being on both sides of eminent domain actions, and discuss a little about when I think it is an appropriate tool.

Being on the receiving end:

My wife Cathy and I were on the receiving end of a condemnation action in 1988. We challenged the “public necessity” in Superior Court and won, but that does not always happen. The experience led to my 28-year service on Renton City Council.

I have been impacted by an eminent domain action directed at me and my wife in the past. That experience helps me understand what it is like being the subject of an eminent domain taking.  Our trial also helped set a judicial precedent on the definition of “necessity,” that, according to my attorney, was cited in many later cases.

My wife and I purchased our home in Renton in 1986. A few months later, the City of Renton and an apartment developer decided they needed a large strip of our property to build a road to an new apartment complex being planned behind our home.  There would be about 400 units, and the traffic would pass on a road ten feet from our house.

We were not interested in helping the developer, but the city threatened to take the needed part of our land by eminent domain.  We tried to negotiate, but we could not agree on a price.  After months of failed negotiations, we challenged the “public use and necessity” in Superior Court.  Fortunately for us in our case, we won. The judge determined the road was not a necessity since the apartments had not yet been built and the developer had too much involvement. Because we won, the City had to pay our legal fees.  Even though we won, the long drawn-out process felt like a betrayal by our government, and I ran for Renton Council.  The process is obviously more stressful and grief-filled for residents who don’t prevail in court.

It’s not a process to be taken lightly.

I’ve attached the ten page judge’s transcript for this case here.

When I’ve been in the Condemning authority:

In my 28 years on Council, I did authorize eminent domain actions in some rare cases.  For instance when a real estate firm was advertising a building for sale at $9 million dollars, and we chose to buy it for our new City Hall.  After the seller learned of the city’s interest, they attempted to raise the price, and we used eminent domain to pay the originally advertised price.

We also used eminent domain occasionally on road widening projects when we could not buy the land we needed; I always pushed for Renton to hold good-faith negotiations beforehand, and I remained engaged in the process to ensure the negotiations remained as fair as possible.   I worked hard to keep many properties in the Sunset area of the Highlands from being taken by eminent domain, and to keep the airport from taking up to 100 homes and businesses.

Process Details and  “Just Compensation”:

Assuming the government has proven the use is public and necessary, the parties will often still differ on what is “just compensation” for the property.   In Washington State, the government gets an appraisal and makes an offer.  If the property in question is very substantial (more than a small sliver for a sidewalk for instance), a shrewd property owner will typically not accept the first offer, and will get their own appraisal which often comes in higher.  The government can meet that price, negotiate something in the middle, or insist on going to court.  Per RCW 8.25.070, if the court determines that a fair price is more than 10% above the highest offer the government has made within 30 days of the trial, then the court will require that the government pays the owners legal fees in addition to paying the higher price.  The process has this mechanism to encourage governments to make fair offers, but sometimes unscrupulous government negotiators will hold off making an acceptable offer to property owners until they are within thirty days of trial.  The trustees (Board, Council, etc) need to ensure their negotiators make fair offers in good faith. The process can be predatory if a government makes a low-ball offer to a naive property owner, or an owner with a language barrier, and the owner accepts the first offer based on trust of the authorities.

Even when the property owner gets “fair market value,” they were typically not planning to sell their property, so this is at best a major inconvenience and often a gut-wrenching, devastating loss of a home or business that they had made immeasurable financial, time and emotional investments in.  Depositing a check for a sale they did not want does not make the loss and upheaval go away.  They typically have to buy a replacement property, and they will probably get stuck with a higher interest rate.  Depending on their job status, they may not qualify for the new mortgage.  Until recently, tenants often got very little compensation for eminent domain loss of leases. (The School District says they’ll help offset some of these costs, but there will be intangibles including personal time that will never get covered)

Asphalt Plant Site compared to Renton High School

I’m imploring the Renton Council to use their purchasing authority, invoking eminent domain if necessary, to acquire the proposed Asphalt Plant site on the Maple Valley Highway  (on our sole-source aquifer.)  Unlike most homeowners and businesses in Renton, Lakeside Industries executives would not have a strong sentimental attachment to this vacant site, which they bought recently from Sunset Materials.  While they have invested time and money in the site, Renton can and should negotiate in good faith to ensure they are compensated for these expenses, plus reasonable incentive to complete the sale and avoid court. If agreement can’t be reached, for the safety of Renton’s water system, Renton should use eminent domain.  Use of eminent domain on a single property owned by a corporation,  as a necessary measure to protect the water supply of the entire city is an easily defensible decision.

The Lakeside Industries property is a barren piece of empty property. It is surrounded by fir trees and the Cedar River basin,  and sits in Renton’s sole source aquifer recharge area.

The School District’s use of eminent domain for a baseball field is less compelling than the asphalt plant.  Instead of taking one vacant property owned by a corporation, the process will destroy 32 historic homes and at least 8 businesses, owned by many long-time residents with sentimental attachments to their properties.  The displaced residents have deep roots here, and work and volunteer in various ways in our city.  Their children are in our schools.  And while a new baseball field is desirable, it is not as essential as having safe water for the entire city.

The school district is using eminent domain to take historic homes and businesses on several blocks along the north and east sides of the school. Some of these are visible in this photo between the large school buildings in front, and the red aircraft hanger in the back.

Even with the new baseball field, Renton High will still lack a swimming pool, unlike the other two high schools.  Perhaps a pool could have been built instead of a new baseball field, on less property and without as many eminent domain takings.  This could have provided more benefit to students in terms of equity, and when opened to the public provide a valuable amenity to the nearby neighborhood.