Public Power, Private Gain: Washington


The Washington Supreme Court may have finally made up its mind. Over the past two decades, it has issued some decisions rejecting condemnations for private use and some that seem to gloss over them, including one as recently as 1998. However, in 2000, the court issued an unequivocal statement prohibiting takings for private use. The results remain to be seen. Washington cities have continued to use eminent domain for private parties, kicking an elderly woman out of her home to make way for a car dealership, as well as condemning various smaller businesses for larger developers. It remains to be seen what will happen with a current plan by Lakewood to remove the homes of hundreds of moderate-income families for an amusement park. Given the latest ruling of the Washington Supreme Court, the bureaucrats of Lakewood must be hoping none of the homeowners take them to court.


Private Use Condemnations


When the City condemned 22 homes in 1996 to make way for a sewer plant extension, all of the owners settled with the City and moved out except for Lovie Nichols, an elderly widow who refused to vacate her home of 55 years. In 1998, the City sent her an eviction notice. However, she was not informed at the time of the eviction that the City had already sold her property out from under her as part of an 11-acre land deal with a local car dealer. Ms. Nichols challenged the eviction on the grounds that the City never had a valid use for condemning her home. Complicating matters was the fact that a 1995 newspaper article had quoted Bremerton Mayor Lynn Horton saying that the City intended to generate revenue by reselling surplus parcels condemned for the plant expansion to private developers. But despite considerable evidence that the taking was pretextual and only for the purpose of transferring the property to private business interests, the Kitsap County Superior Court ruled in favor of the City.686 In December 1999, the state Court of Appeals upheld the trial court’s decision.687 Lovie Nichols finally was forced to move out of her home after the Washington Supreme Court declined to review her case.688



The Town of Lakewood and a Kentucky-based developer were working to get a $150-million, privately owned amusement park built on 80 acres of land currently occupied by hundreds of families. City manager Scott Rohlfs indicated that the Town could buy the land and then lease it back to the park operators. Lakewood claimed that the amusement park was a “public purpose” that would lure development and spark urban renewal in depressed Lakewood neighborhoods.689 It would also be the only large theme park in the Northwest U.S., with many exciting thrill rides. However, the longtime residents of 59 trailers in the Sunrise Village mobile home park were not thrilled. Neither were the approximately 150 other families who rent low-cost apartments or duplexes on the site, which is close to Army and Air Force bases. They all currently live on the 80-acre site and would be forced to move if the park is built. Most believe they would be forced to pay significantly higher rents elsewhere.690 The whole project fell though when the Washington legislature denied a sales tax exemption the developer requested.691



The state legislature approved the use of eminent domain for expansion of the Washington State Convention Center, conditioned on the center’s ability to raise $15 million in private funding for the project. The center selected a design that placed the new exhibition hall on the fourth floor, because this design would open up a large amount of street-level space that the City could sell or lease to bring in the required outside funds. The plan also called for the center to condemn nine properties: a 127-unit apartment tower, a condominium/garage structure, six parking lots and a rental car outlet. In return for certain easements, private developer R.C. Hedreen Co. agreed to purchase the extra ground floor space, which it planned to use for retail shops and parking for a new hotel to be built on adjacent land not subject to condemnation. After the center moved to condemn the nine properties, one owner accepted the center’s purchase offer, but the other eight challenged the takings. In November 1998, the Washington Supreme Court ruled in favor of the center, holding that because the private use is merely incidental to the overall public nature of the project, the “public purpose” is valid.692 However, in a stinging dissent, Justice Richard B. Sanders explained that Washington’s strict eminent domain statute explicitly forbids the taking of land for a public use and then selling the excess for private use.693



In November 1999, the City filed suit to condemn the Monterey Hotel, an old three-story hotel in downtown Vancouver that housed mainly low-income people. A developer from just over the state line in Portand owned most of the block around the hotel, and City officials wanted to clear out the last property before the developer could build a planned six-story residential, office and retail development with adjacent parking structure. The hotel’s owners, R.K. and Geetaben Patel, challenged the condemnation, arguing that the City lacked a public use.694 However, the trial court ruled in favor of the City. Just as the Washington Court of Appeals was about to hear the case, the Patels reached a settlement with the City and agreed to sell. However, in the meantime the planned development fell through, and the City currently has no specific plans for the building until a new developer shows interest in the area.695


* These numbers were compiled from news sources. Many cases go unreported, and news reports often do not specify the number of properties against which condemnations were filed or threatened.

686 Gordy Holt, “Bremerton Woman Just Won’t Budge; Grandmother Is Fighting Condemnation of Her Home,” Seattle Post-Intelligencer, Nov. 22, 1999, at A1.

687 See City of Bremerton v. Estate of Anderson, 1999 Wash. App. LEXIS 2044, at *20 (Dec. 3, 1999).

688 City of Bremerton v. Estate of Anderson, 10 P.3d 407 (Wash. 2000); “Widow Will Lose Her Home, Land After All,” Seattle Post-Intelligencer, July 18, 2000, at B3.

689 Skip Card, “City May Condemn Land For Theme Park; Lakewood Needs Property for Amusement Center,” The News Tribune (Tacoma, Wa.), Feb. 3, 2000, At B1.

690 Skip Card, “Planned Lakewood, Wash., Theme Park’s Neighbors Fear Being Forced Out,” The News Tribune (Tacoma, Wa.), Dec. 18, 2000.

691 Joseph Turner, “Why Did Pierce Lose its Clout in Olympia?,” The News Tribune (Tacoma, Wa.), Apr. 28, 2002, at Front Page.

692 See State of Washington v. Evans, 966 P.2d 1252, 1259 (Wash. 1998).

693 See id. at 1261-63.

694 “Vancouver Files Suit to Condemn Old Hotel,” The Oregonian (Portland, Or.), Nov. 25, 1999, at B5.

695 “Vancouver, Hotel Owners Agree on $750,000 Price,” The Oregonian (Portland, Or.), Nov. 12, 2001, at C2.