Eminent Domain Report

In Washington State, when a public agency determines it needs to acquire property for a public project, the agency will work directly with the private property owner to negotiate a purchase price for the property rights needed. However, if the agency reaches an impasse in the negotiations with the property owner, the public agency may turn to its eminent domain power and initiate a condemnation lawsuit. A condemnation lawsuit triggers the formal legal process for the agency to take private property for a public purpose without the owner’s consent in exchange for payment of just compensation.

Condemnation Initiated

A condemnation action in Washington State is initiated when the agency files a Petition in Eminent Domain in the superior court of the county in which the property is located and properly serves notice of the action on the owner.

Public Use and Necessity

Following the initiation of the condemnation action, the agency will typically file a motion with the court asking for an Order Adjudicating Public Use and Necessity. In this motion, the agency will explain to the court the agency’s authority to condemn the property, how the property will be used for a public purpose, that the public interest requires the use, and that the property being acquired is necessary for that use. This stage of the condemnation action presents an opportunity to challenge the agency’s arguments and ask the court to deny the motion. If denied, the condemnation action will end. If granted, the condemnation proceeds towards a determination of just compensation.

Possession and Use

At any time during the life cycle of the condemnation, the agency may make a request to the property owner for immediate possession and use of the property – that is possession and use of the property before a final determination of the just compensation owed. In Washington State, the property owner has discretion to grant or deny the agency’s request; however, the law regarding repayment of attorney fees and expert witness fees creates an incentive for the property owner to grant immediate possession and use to the agency.

Mediation

Many superior courts in Washington State, require that parties in a condemnation action participate in alternative dispute resolution, such as a judicial settlement conference, arbitration, or mediation – with mediation being the most common. If alternative dispute resolution is to occur, it will usually take place after public use and necessity is granted and before trial begins.

30-Day Offers of Settlement

Throughout the life of the condemnation, the agency is likely to make at least one written offer of settlement stating the total just compensation that would be paid by the agency if the property owner were to accept the settlement. This offer is typically made at least thirty days before the start of trial.

Trial – Determination of Just Compensation

If settlement is not reached, the court will hold a trial to determine the sole issue of the amount of just compensation to be paid by the agency for the acquisition of the property. Condemnation trials are often, but not necessarily, jury trials.

Judgment and Decree of Appropriation

Upon the verdict of the jury or determination of the court of the just compensation to be paid, the court enters a Judgment and Decree of Appropriation. The agency then deposits the specified award of just compensation with the court registry, which thereby vests title of the property in the condemning agency. The Judgment and Decree of Appropriation is typically also recorded with the relevant county auditor and has the same effect as a deed of real estate. This step concludes the agency’s role in the condemnation.

Disputes Between Parties

As the final step of the condemnation action, after the condemning agency deposits the just compensation funds with the court registry, parties claiming an interest in those proceeds must then petition the court for disbursement of those funds. If the court receives competing or contested claims for disbursement, the court will first resolve the disputed interests before disbursing the funds.

Reminder – Know Your Condemning Agency

Condemnation actions in Washington State generally follow the process summarized here. However, RCW 8 does establish particular rights, obligations, and procedures depending on the type of agency initiating the condemnation. As such, it is important for both legal practitioners and property owners to familiarize themselves with the relevant particularities applicable to the agency with whom they are working.