August 13 land use program summary

This a follow-up to my August 9 entry advising of an August 13 breakfast meeting/program on the post-KELO land use environment. See:

http://yousoufian.blogspot.com/2005/08/august-13-morning-program-on-eminent.html

Below is a summary of this past Saturday's meeting by Kent Kammerer, long-time organizer/leader of the Seattle Neighborhood Coalition ("SNC") citizen activists group. For 20 years, the SNC has held second Saturday monthly breakfast meetings in Seattle's "Denny Regrade" (now "Belltown" or "uptown") area, always with an interesting presenter. This month's speaker was Seattle land use attorney Richard Aramburu. By the way, I felt the presentation was very neutral and well balanced, which doesn't always happen in this subject area.

By the way, if you'd like to get on Kent Kammerer's email list for announcements of future monthly meetings, feel free to email me at ayousoufian@comcast.net and I'll pass your request on to Kent. Please be sure to put: "SNC email list addition" in the subject line, as I don't otherwise open every email that comes in, for any number of reasons...

Armen Yousoufian

From: Kent Kammerer
Subject: Summary Seattle Neighborhood Coalition 8-13 eminent domain
Date: Mon, 15 Aug 2005 08:16:10 +0000


By popular request, a summary of the 8/13/05 meeting of the Seattle
Neighborhood Coalition on the subject of eminent domain. This summary
contains selections from a two hour discussion. It is an interpretive
not a verbatim account intended only to give a sense of the discussion.

Our guest, Rick Aramburu, was asked to discuss the United States
Supreme Court’s decision on eminent domain.

Following is a condensed version. It is followed by a more detailed
summary and opinion.

The US Supreme Court ruled that local governments may force property
owners to sell out and make way for private economic development when
officials decide it would benefit the public, even if the property is
not blighted and the new project's success is not guaranteed. While
Washington State technically prohibits the use of economic development
as a valid reason for taking property, our guest Rick Aramburu, gave
examples of decisions that suggest there are sufficient loopholes and
differences in interpretations in Washington State that suggest we are
still susceptible to the possibility. He noted that the US Supreme
Court did not, as had been hoped, define or give specific rules for
future interpretation. The ruling was, in some respects, a non
decision. Judge Stevens said, in essence, it’s up to the States to
make the rules. Aramburu made it clear that future decisions on
eminent domain will hinge on how our elected judges and public
officials define economic development, public benefit and blight. In
Washington the use of eminent domains is on a very slippery slope and
asking those we elect to tell us how they would interpret the issue
seems important.


**************************************************************
BACKGROUND:

For those unfamiliar with the term “eminent domain” it is the legal
term used to describe the process by which the state/government can
seize private property for public use. The US constitution prohibits
the taking of private property without just compensation, and then only
for uses deemed to be of public benefit. Through the years the
rationale of public benefit has evolved to become, in the eyes of some,
blurred.

In June of 2005 The US Supreme Court ruled that local governments may
force property owners to sell out and make way for private economic
development when officials decide it would benefit the public, even if
the property is not blighted and the new project's success is not
guaranteed.

The 5 to 4 ruling provided the strong affirmation that state and local
governments had sought for their increasing use of eminent domain for
urban revitalization.

Opponents argued that forcibly shifting land from one private owner to
another, even with fair compensation, violates the Fifth Amendment to
the Constitution, which prohibits the taking of property by government
except for "public use."

But Justice John Paul Stevens, writing for the majority, was joined in
his opinion by other members of the court's liberal wing — David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer, as well as Reagan
appointee Justice Anthony Kennedy, in noting that states are free to
pass additional protections if they see fit. He cited cases in which
the court has interpreted "public use" to include not only such
traditional projects as bridges or highways, but also slum clearance
and land redistribution. Stevens concluded that a "public purpose" such
as creating jobs in a depressed city can also satisfy the Fifth
Amendment. The court should not "second-guess" local governments,
Stevens added, noting that "[p]romoting economic development is a
traditional and long accepted function of government."

Steven's opinion provoked a strongly worded dissent from Justice Sandra
Day O'Connor, who wrote that the ruling favors the most powerful and
influential in society and leaves small property owners little
recourse. Now, she wrote, the "specter of condemnation hangs over all
property. Nothing is to prevent the State from replacing any Motel 6
with a Ritz-Carlton, any home with a shopping mall, or any farm with a
factory."

Washington State, along with seven other states, prohibit the use of
economic development as a rationale to initiate taking of property for
eminent domain proceedings. The remainder of the other states have
less protection. The decision has created a tidal wave of opposition
from both Republicans and Democrats and some states are already
proposing new legislation to prohibit the possibility.

While Washington State’s constitution is more specific regarding how
eminent domain can be applied, it does allow government to use eminent
domain to prevent blight. Our State Supreme Court has, according to
some, liberally interpreted what is blight and what is a public
benefit. Their decisions call into question whether our constitutional
provisions regarding eminent domain are as solid as one might perceive.
It remains a matter of opinion whether the Washington State’s Supreme
Court has, or will in the future, give greater latitude to their
interpretation on eminent domain provisions. Or, for that matter,
other unrelated constitutional provisions like governments lending of
credit, or giving financial assistance to specific businesses. That is
now forbidden, but done on a regular basis with other tools like PDA’s
(public development authorities.)

What will happen in Washington State? Will forces gather to allow
greater use of eminent domain or will the opposite occur, the
tightening of eminent domain requirements for defining the public good
or benefit?

Rick Aramburu a prominent land use attorney began by providing some of
the background just cited then defining what had locally been
considered viable reasons for granting eminent domain. Historically,
roads, parks, public buildings are clearly public benefits. They have
little public opposition. Aramburu said that as time passed blight
was added to the list of acceptable public benefits to rationalize the
taking of property. Many of these cases were located in older
northeastern cities where abandoned buildings, crime and gross neglect
had made parts of those cities dangerous or inhospitable to new
development. Government could see no other way to reverse the problems
but to buy the land and change its use. The public accepted much of
the reasoning. Only on occasion did graft cause a taking of property.

Aramburu cited 4 cases, three of them local, where Washington’s
narrower interpretation of eminent domain was bent to the limit. One
was the Westlake Mall, one was the Nordstrom parking garage and the
other was the Washington State convention center. In each case there
were one or more pieces of rationale or conditions that were either
misrepresented or set aside in the determination of qualifications for
eminent domain. Call it a loophole, a stretch, or simply a radically
different opinion, but in each of these cases eminent domain was
employed when many thought it wasn’t justified.

The fourth case cited by Aramburu was in California where a city
claimed that the potential for “future blight” was reason to take
property from one individual and essentially give it to another. It
was, and is, an example that serves to illustrate that whether blight
or economic development is the reason cited for the taking of property.
If the stakes are high enough any reason can be used to justify a
decision. While none of these cases were of landmark status all three
tend to support the argument offered by US Supreme court justice Sandra
Day Oconnor who warned that the most “powerful and influential” in our
cities will have the political clout to sway even honest elected
representatives. The Supreme Court’s ruling, by not setting firm
criteria, leaves it up to local authorities to decide what is blight
and what is sufficient reason to claim the taking of property.

Aramburu fielded many questions from the audience on the issue of the
King County sensitive areas ordinance. Alleged to be for environmental
reasons large portions of private land have been classified as
sensitive areas with very limited uses allowed. In these examples the
land was in effect “taken,” but not claimed as eminent domain. The
owners lost the use of their land as if it were taken for the greater
public good by eminent domain, but not given compensation. Aramburu
was asked wasn’t this an unlawful taking? Aramburu responded that
unless the State Supreme Court or the legislature acts otherwise the
restriction isn’t viewed as a taking, but is considered regulation.

Aramburu was asked about a number of examples where Sound Transit had
acquired property in Rainier valley for the light rail right of way,
but in reality they had acquired, by the threat of eminent domain, land
which wasn’t actually needed. The suggestion was that the land was
obtained at a lower price, but that after the gentrification
associated with the light rail the property probably would be sold to
private developers, thereby depriving the current owners the
opportunity to take advantage of the increased value of their property.
Aramburu replied that under current law paying current market value
is legal, and reselling it later at a higher price is also legal.
Aramburu pointed out that Sound Transit, the Monorail and the Port of
Seattle are like juggernauts to the small landowner, and fighting them
is for all practical matters hopeless.

It was pointed out that the “sinking ship garage” property near the
court house which the Monorail has claimed essential for their station,
is another example of unfair taking of private property. The owner
feels he is being effectively swindled out of the property. Currently
under litigation this case claims the monorail only needs part of the
property for a station, but wants all of it for so called “staging.”
The owner was willing to sell the portion needed for the station and
willing to lease to the Monorial the other portion for staging but
claimed they had a right to the increased future value, not the
Monorail.

Aramburu pointed out that even the traditional reasons for eminent
domain i.e. for transportation, parks, public buildings etc. intended
for the public public benefit can be misused. For example, it’s
possible to sue for damages that result from excessive regulation or
unfair property evaluations or even the rationale used to determine
public benefit, but that it takes money to go to court and the small
landowner is at a disadvantage.

Aramburu was asked if Washington’s constitutional provisions for
eminent domain should be tightened to limit misuse. Aramburu responded
that the constitution is clear enough. He noted that maybe the title 8
provisions in the procedures for condemnation might be tweaked, but the
primary issue is electing judges who will follow the constitution
intent and electing local officials who value the rights of individuals
and won’t push for extreme reasons to take property for public use if
it is only to be later turned over to a major developer.

OPINION:
It is possible the Supreme Court decision has nicked a sensitive cord
in American public opinion. Conservatives and liberals alike have
joined in the outcry that local government can, and often has, gone too
far in their use of eminent domain. Nowhere has the slippery slope
concept been more dramatically realized than in the seizure of private
property. Regardless of their rationalizations for taking property or
what ever their political leanings, overzealousness in the use of
eminent domain in an attempt to create a better society must undergo
much more stringent oversight.

Locally public works projects like Sound Transit, the Monorail, the
third runway would seem to be easily justified in using their
condemnation powers. Yet, some agencies seem drunk with power and are
as ruthless as any robber baron if they can seize private property in
the name of progress, believing some higher authority justfies their
actions. It is the excessiveness which has rankled Americans into what
may be a rather major revolt at the polls. A revolt which will see
liberals and conservatives forget about some classic differences and
join in the removal from office those they see as obsessive regulators.

For example, in King, or any other county, one can argue that there are
some justifiable environmental reasons to regulate some sensitive
areas. But in doing so there must be a clear unequivocal environmental
rationale to justify a regulation that would prohibit a specific land
use, not the off-hand opinions of minor government functionaries with
absolutely no valid scientific credentials. In the effort to halt some
unscrupulous landowners from over development gargantuan regulations
have been imposed. Of course we need not and should not damage
important streams or aquifers or cut all the standing timber or choose
to build endless rows of ticky-tacky houses, but in so doing, we should
not punish those who have held the land in trust for many years and
have been good stewards of the land. Good governance should not have
to choose between raping the land or raping the landowners. Regulators
show every indication of having gone stark raving mad with the
regulations they have imposed.

America has fought several wars, losing thousands of human lives, in
defense of what we call “the American way.” Unlike some regimes our
system is neither a tyranny or a collective. We cherish the right of
our citizens to not work for the collective government, but with it, to
reach reasonable solutions. Boulder, Colorado for example understood
the land surrounding their city had a limited capacity for growth. The
people made it clear they didn’t want it cluttered with development the
environment couldn’t support. Water resources were limited. Boulder
bought thousands of acres, most from willing sellers, some by eminent
domain. If we are to put land in a public trust or “take” land for
whatever reason, we must pay for what we take. It’s not a change in
philosophy it is our law. Lets make sure to ask our candidates for
public office where they stand on these issues.