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Eminent Domain

This page provides an overview of eminent domain laws in Washington State, including examples of condemnation ordinances, court decisions, and other resources.

Overview

Eminent domain is the government power to acquire private property necessary for public use following due process of law and payment of just compensation. Proceedings to take property under eminent domain are referred to as "condemnation" proceedings. The property that governments may condemn includes fee title as well as lesser interests in real property, such as easements, and also "non-physical" interests, such as air rights.

How Does Eminent Domain Work?

Under long-standing case law, for a proposed condemnation to be determined by a court to be lawful, the condemning authority (i.e., the local government) must prove that:

  1. the proposed use for the property is really public;
  2. public interest requires it; and
  3. the property appropriated is necessary for that purpose.

Private property may not be taken for private uses, except for limited purposes authorized by article 1, section 16 of the Washington State Constitution. That section states, in part, that:

Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes.

However, the U.S. Supreme Court decision in Kelo v. City of New London (2005) raised concerns over whether a state constitution allows local governments to exercise the power of eminent domain for economic development purposes. In 2007, the Washington State Attorney General created an Eminent Domain Task Force to study eminent domain authority in Washington State in the wake of the Kelo decision, producing the Eminent Domain Task Force Report in 2009.

Whether the proposed use of the property to be condemned is in the public interest is a judicial question; the courts are not bound by the determination of a municipal governing body that a proposed use is a public one.

While the state has the inherent power or authority to condemn private property, it also that delegates that authority to cities, counties, and certain other municipal corporations through statutory law which governs what property may be condemned and the procedures for condemning it. For example, cities may condemn property outside their limits (RCW 8.12.030), including property owned by the county or by the state (if not already put to a public use), while counties have no authority to condemn city or state property (RCW 8.08.010).

If a government effectively takes or damages property or a property interest without instituting condemnation proceedings, a property owner may receive compensation for damages through an "inverse condemnation" action. Examples include damages from aircraft noise or the discharge of water onto property.

Property can also be taken through the regulatory actions of local governments, such as by the imposition of development requirements and restrictions. Regulatory takings of property is covered in our Property Rights and Regulatory Takings webpage.

Statutes and Constitutional Provisions

Special Purpose Districts

Below are selected statutes authorizing special purpose districts to use eminent domain; other types of districts may have additional statutory authorization.

Examples of Ordinances and Other Documents

Selected Washington State Court Decisions

The right to damages for an injury to property is a personal right belonging to the property owner and does not automatically pass to a subsequent purchaser. Inverse condemnation claimants must show that the subsequent purchaser rule does not bar their suit; it is not a defense that must be proved by the government.

Maslonka v. PUD No. 1 of Pend Orielle County and Port of Pend Orielle (8/3/2023) – This case involved an inverse condemnation claim related to flooding occurring on the plaintiffs’ private property. In 1955 and 1960, the plaintiffs’ predecessors in interest sold express easements to the Public Utility District (PUD) to allow water to flood the land in question to a specified elevation. Flooding is necessary for proper dam operation (which involves raising and lowering gates at various times, depending on the water flow). Seasonally, due to snow melt, the PUD lifts the gates and the river floods and reaches an elevation on the plaintiffs’ land that surpasses the express easements. This flooding caused damage on plaintiffs’ property.

The plaintiffs filed a complaint against the PUD for (1) governmental taking, (2) statutory trespass, (3) nuisance, and (4) negligence. The trial court granted the PUD’s motion for summary judgment, finding that the subsequent purchaser rule barred the inverse condemnation claim and that the PUD had established a prescriptive easement, negating the trespass and nuisance claims. The court of appeals reversed, holding that the subsequent purchaser rule is a defense and the PUD failed to prove this defense; it also allowed the tort claims to proceed.

The Supreme Court reversed, holding that the subsequent purchaser rule is not a defense and instead is a doctrine of standing, which the plaintiff must establish. The court noted that the subsequent purchaser rule limits who may sue for inverse condemnation by prohibiting a subsequent purchaser from asserting the legal rights of the owner at the time of the alleged taking. Here, the proper inverse condemnation claimants were the previous owners who owned the land when the dam was built in 1955. As subsequent purchasers, the plaintiffs do not have an inverse condemnation claim unless they can establish a new taking after their purchase in 1993, which they have failed to do. The court also held that where the subsequent purchaser rule bars the underlying takings claim, a party cannot proceed in tort for the same underlying conduct.

City was authorized to condemn property rights in a creek for the purpose of improving its surface water drainage system and improving salmon habitat.

City of Sammamish v. Titcomb (2023) – The City of Sammamish (City) initiated condemnation proceedings to acquire property interests in a creek in connection with a project to improve the city’s storm drainage system and enhance salmon habitat. The project was intended to reduce storm drainage system capacity issues and remove barriers to fish passage. The creek flowed under a property owner’s house, where a daylit fish ladder was integrated into the foundation. The city’s project called for relocation of the creek away from the home to an adjoining property that had been acquired by the city for that purpose.     

The homeowners argued that the city had no authority to condemn property for the purpose of improving fish habitat. The Washington Court of Appeals disagreed, noting that the city condemnation of property for stormwater facilities is a valid public purpose. The fact that the project also provided fish habitat benefits did not divest the city of its authority to condemn property for stormwater improvements. The court also ruled that the city’s proposed acquisition was reasonably necessary and pointed out that the question of necessity is primarily legislative, subject to deferential review by the courts. 

Regional transit authority can condemn city property.

Central Puget Sound Regional Transit Authority v. WR-SRI 120th North LLC (2018) – Although the statutory language does not contain express language authorizing condemnation of property owned by government entities, the court found that the statute granted Central Puget Sound Regional Transit Authority (known as Sound Transit) implied power to condemn properties owned by other subdivisions of the state based on the following statutory language: 

Public transportation facilities and properties which are owned by any city, county, county transportation authority, public transportation benefit area, or metropolitan municipal corporation may be acquired or used by an authority only with the consent of the agency owning such facilities.

The court reasoned that this language would be superfluous if Sound Transit did not have authority to condemn other types of property owned by government entities. 

Condemnation for salmon passage not authorized.

Cowlitz County v. Martin (2008) – The court held that the county condemned property without proper authority because the condemnation was to enable salmon passage in the creek, and Washington's Salmon Recovery Act, chapter 77.85 RCW, did not grant the county the authority to condemn private property for this purpose; nor did such a purpose qualify as a "public use" under RCW 8.08.010. The commissioners chose to proceed under the Salmon Recovery Act and authorized condemnation for no other public purpose. In this situation, the county could not proceed under RCW 8.08.020, a broader grant of condemnation power.

Necessity for condemnation.

Yakima County v. Evans (2006) – Property owners challenged the county's condemnation of property for a road project, arguing that there was no public necessity for the condemnation and alleging various procedural errors. The court affirmed the condemnation, holding that, whether it is necessary for a government agency to condemn property is largely a question for the agency's legislative body to determine, and that the court will not overturn the finding of public necessity unless it was arbitrary. The court also determined that a property owner does not have a statutory or due process right to personal notice of a public meeting at which a government agency determines that there is a necessity for condemning property.

Condemnation by city transportation authority.

In re Petition of the Seattle Popular Monorail Authority (2005) – A city transportation authority, created pursuant to chapter 35.95A RCW, possesses the power of eminent domain, as that power may be inferred from its authorizing statute and from other statutes. Although the authorizing statute does not specify what procedures must be followed for condemnation, by implication, the procedures applicable to cities (chapter 8.12 RCW) should be followed. The determination of necessity and extent of the property interest that must be condemned to carry out the public purpose of a condemnation is a legislative decision that will be upheld by the court absent fraud or arbitrary and capricious conduct. The courts give deference to the legislative body's determination.

Condemnation for public boardwalk.

City of Blaine v. Feldstein (2005) – Public boardwalk proposed by the city was a public use under RCW 8.12.030, where the boardwalk would be used to convey pedestrians, allowed the public to access scenic views, and would fall under the "any other public use" provision of the statute. The property owner did not show that the city's decision to locate the boardwalk between certain streets was arbitrary and capricious.

Condemnation of blighted structure.

City of Tacoma v. Zimmerman (2004), review denied (2004) – The plaintiffs appealed an order adjudicating a public use for the property, declaring it a blight and subject to the city's power of eminent domain. The plaintiffs claimed the building was not of sufficient value to be repairable and that it was more economical to demolish the building. The court held that the city council did not abuse its discretion when it decided to exercise its eminent domain power under the Derelict Building Procedure of the city's code, concluding that "A landowner who allows his property to fall into disrepair endangering the community thus transfers decision – making authority over the property to the elected representatives of that community."

Recreational trail.

City of Long Beach v. Wong (2004), review denied (2004) – A city may condemn land outside of its city limits for a "park" within the meaning of RCW 8.12.030. The court determined that a trail designed primarily for pedestrians and bicyclists and meant to teach the story of the Corps of Discovery expedition fits the definition and purposes of a park.

Incidental private component.

City of Lynnwood v. Video Only, Inc. (2003), review denied (2004) – The court determined that a shopping center was acquired by a public facilities district (PFD) for a lawful public use (convention center parking and future expansion), even though there was an incidental private component when the PFD leased the property as an interim financing device for construction and operation of a regional center.

Timeliness of stipulation to immediate use and possession.

State v. Allerdice (2000), review denied (2004) – Under RCW 8.25.070(3), the owner of property that is the subject of an eminent domain proceeding in which an order of public use and necessity has been entered has 15 days after the order becomes final to stipulate to immediate use and possession of the property. The order does not become final until an appeal of the order is resolved. Property owners who turn over their property within that 15-day period are entitled to attorney fees if the jury verdict is at least 10% more than the government's highest settlement offer.

Determination of just compensation.

City of SeaTac v. Cassan (1998) – Just compensation is the difference between the fair market value of the entire property and the fair market value of the remainder. It includes the value of the property taken and the damages, if any, caused to the remainder by reason of the taking, offset by the amount of special benefits, if any, accruing to the remainder of the property as a result of the project that necessitated the condemnation action.

Condemnation for multi-purpose arena.

Schreiner v. City of Spokane (1994) – Development of a multi–purpose community center under chapter 35.59 RCW and the acquisition of a sports and entertainment facility under chapter 36.100 RCW represent a similar goal: provision of a facility for civic entertainment, cultural, and educational events. The multi–purpose community centers statute and the eminent domain statute (RCW 8.12.030) specifically provide general authority to condemn for this purpose.

No separate action for damages.

Pelley v. King County (1991), review denied (1992) – After the county began condemnation proceedings, the property owners brought an action against the county seeking damages for inverse condemnation, nuisance, and the tort of outrage in connection with the county's plan to build an access road. The property owners alleged that building an access road according to the county's plan would have denied them reasonable access to their land. The court determined that the proper forum for resolution of the property owners' issues was in the superior court during the valuation phase of the county's condemnation proceeding.

Condemnation for public park.

In re City of Seattle (1985) – The condemnation of property to establish a park does not violate the constitutional requirement that private property be taken only for a public use merely because the park is a component of an overall governmental plan for the area and will benefit adjacent private property.

Not a public use.

In re Seattle (1981) – Where the purpose of a proposed condemnation is to acquire property and devote only a portion of it to truly public uses, the remainder to be rented or sold for private use, the project does not constitute public use. No statutory authority exists to condemn property for an urban "focal point," or an urban shopping center, or facilities to be leased for private use as retail establishments, restaurants, or theaters.

Authorizing ordinance.

King County v. Farr (1972) – The property owners moved for dismissal of the condemnation proceeding because there had been no showing that the county had made a determination that acquisition of their property was necessary for the proposed park. The court of appeals held that a condemning authority is not required to set forth the precise reasons for the necessity of taking land in the ordinance authorizing the condemnation proceeding. Even if the authorizing ordinance had been defective because it had not stated that determination of necessity, there was substantial evidence in the record to support the trial court's finding that the acquisition was necessary.

County cannot condemn city property.

King County v. City of Seattle (1966) – The court held that the county did not have the power to condemn the property owned by the city because the condemnation statutes (RCW 8.08.010-.080) did not delegate the county any specific authority to condemn lands or property belonging to another municipal corporation or to the state, regardless of the use to which that property is being put.

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Last Modified: May 28, 2024