Even though the Constitutions of Washington and the United States allow property to be taken for public purposes if just compensation is paid, it actually is controlled by statute. The government can only take property for public use. Once the petition is filed, the court will have a hearing to ensure both (1) that notice has been properly served on all parties having any interest in the property; and (2) that the government’s use is for a public purpose. If public use is questioned but the court finds the taking is for public use, then the landowner must file an appeal within five days of the entry of the order with the appellant court for a separate hearing[i].
The first step in actually condemning property in Washington is filing the petition for appropriation. The petition must be filed in the county where the land is located. It must also reasonably describe:
- the property,
- identify all those with an interest in the land (tenants included) that can be known with reasonable certainty,
- why the property is needed, and
- requesting that a jury be impaneled to determine the amount of compensation to be awarded for taking the property[ii].
Once the petition for eminent domain is filed, it must be served on all the parties listed. Moreover, an attempt must be made to notify anyone that might have an interest in the property but might not be able to be found by the government. Generally, the notice will have a copy of the petition and a date where the petition will first be addressed by the court[iii].
Assuming the need of the property is for public use, at the conclusion of the hearing, the Judge will enter an order directing determination of damages and offsetting benefits. This order must set a trial date within 30 days of the date of the order if a jury is available, or 60 days if no jury is immediately available. The determination to be made is just compensation for the property owners. The baluation of just compensation in eminent domain proceedings takes into account three things such as:
- the fair market value of the property acquired;
- any damages to property remaining (if any); and
- any special and direct benefit accruing to the remaining property as a result of the improvement[iv].
The Revised Code of Washington is the compilation of all permanent laws now in force. Title 8 of Revised Code of Washington is titled “Eminent Domain.” Title 8 holds most of the Washington eminent domain procedural rules. Despite the rules being broken up, eminent domain proceedings by Washington State, its counties, or any of its cities are almost uniform. The rule describing what happens at an eminent domain trial in Washington is set out in the Revised Code of Washington statute 8.04.110 as follows:
- A superior court judge shall preside over the trial;
- The trial shall be held to determine the compensation and damage to be awarded;
- The trial shall be held at the the courthouse in the county where the land, real estate, premises or other property is located;
- If it is a trial by jury, they shall give their verdict as a lump sum the total amount of damages which shall result to the property; and
- At the trial, witnesses may be examined just like in a normal civil trial.
The trial operates like any other trial. However, the only difference is the issues are related to eminent domain law. RCW 8.04.112 covers damages to buildings taken by eminent domain. If a building is standing, in whole or in part, the jury shall add to their finding the value of the damages to the building. If the entire building is taken or damaged so badly that it cannot be readjusted or moved, the measure of damages is the fair market value of the building. If part of the building is taken and it can be readjusted or replaced on any land remaining and the state agrees, then the measure of damages is the cost of readjusting or moving the building, plus any depreciation in market value occurring because of the move. If damages to a building are based upon readjustment or moving, then the court also must set a time within which any such building must be moved or adjusted[v].
If the building is not moved or adjusted within that time frame, Washington State can move the building and charge the owner the costs for the move. The state automatically gets a lien on the property if the cost are not paid for. The amount of the lien and satisfaction of any liens is determined by application and entry of a supplemental judgment by the court. RCW 8.04.130 requires the state to pay the amount of the award to the clerk of the court. This allows the state to get the property they need and then allows for a separate hearing for anyone that thinks they are entitled to some of the money. However, if the jury or court’s verdict is appealed, the money paid into the court must stay there until the determination of proceedings has occurred.
The Legislature allows for condemning authorities to ask the court for an Order of Immediate Possession. In order to get an order of immediate possession:
- an order of necessity must have been granted;
- the order of necessity shall not have been challenged by the landowner;
- the condemning authority shall require immediate possession;
- the Attorney General has stipulated with landowners in accordance with RCW 8.04.092 and 8.04.094;
- filed with the court a certificate that the condemning authority requires immediate possession and use of the land, which also states the amount of money to be offered and that the offer constitutes a continuing offer;
- a copy of the certificate is filed with the office of financial management, which cuts a check for the amount offered to the attorney generals office; and
- the money offered to take the property is paid into the court[vi].
The court considers the amount paid into the court as just compensation an adequate amount for the taking of property by eminent domain if no trial is demanded by the landowner[vii]. However, if the award is challenged, the landowner may take the amount paid into the court out of the court’s possession with no penalty. If, after a trial, the amount owed to the landowner for the property taken and damages to the remainder is more than that paid by the condemning authority, they will have to immediately pay the difference. If the award is lower than that paid into the court by the condemning authority, the landowner must pay back the difference to the state.
If a person contests the award offered by the condemning authority and paid into court, then s/he must demand a trial for the purposes of assessing just compensation within sixty days of the date the order of immediate possession and use is filed. After the demand is made, the trial must be set within one year of the date the demand is made, unless good cause for delay can be shown. Otherwise, the court shall enter a decree of appropriation for the amount paid into court. The decree shall be final and nonappealable[viii].
[i] RCW 8.04.070.
[ii] RCW 8.04.010.
[iii] RCW 8.04.020.
[iv] RCW 8.04.080.
[v] RCW 8.04.114..
[vi] RCW 8.04.090.
[vii] RCW 8.04.092.
[viii] RCW 8.04.094.